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The third wave of Internet exceptionalism

Our Regulation Temptation

By Eric Goldman

Eric Goldman
Eric Goldman is an associate professor and director of the High Tech Law Institute at Santa Clara.
Photo: Charles Barry

In 1996, a judge called the Internet “a unique and wholly new medium of worldwide human communication.” Predicated on this perceived novelty, regulators have enacted many Internet-specific laws that diverge from regulatory precedents in other media, a phenomenon called “Internet exceptionalism.” Internet exceptionalism can be appropriate, but it also can produce bad regulation when the Internet’s differences are overstated. So, when does Internet exceptionalism make sense?

The first wave: utopianism

Internet exceptionalism started with the Internet’s emergence as a massmarket medium. In the mid-1990s, some people fantasized about an Internet “utopia” that would overcome the problems of other media. Some regulators, fearing disruption of this possible utopia, sought to protect the Internet.

One flagship example of this is 47 USC 230, a law still on the books. The statute categorically immunizes online providers from liability for publishing most types of third-party content. It was enacted (in part) “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” The result: The law treats online providers more favorably than offline publishers—even when they publish identical content.

The second wave: paranoia

Later in the 1990s, the regulatory pendulum swung in the other direction. Regulators still embraced Internet exceptionalism, but instead of favoring the Internet, regulators treated the Internet more harshly than analogous offline activity.

In 2005, a Texas Web site called announced that it would offer “Internet hunting.” Paying customers could control, via the Internet, a gun on a game farm. An employee manually monitored the gun and could override the customer’s instructions. The Web site gave people who could not otherwise hunt, such as paraplegics, the opportunity to enjoy the hunting experience.

The regulatory reaction to Internet hunting was swift and severe. More than 35 states banned it. California also banned Internet fishing for good measure. However, regulators never explained how Internet hunting is more objectionable than hunting in physical space.

California Sen. Debra Bowen (now California’s secretary of state) criticized Internet hunting because it “isn’t hunting; it’s an inhumane, over-the-top, pay-per-view video game using live animals for target practice….Shooting live animals over the Internet takes absolutely zero hunting skills, and it ought to be offensive to every legitimate hunter.”

Bowen’s remarks reflect numerous unexpressed assumptions about the nature of “hunting” and what constitutes fair play. Many have struggled to explain exactly why shooting animals via the Internet is worse than shooting them in physical space. Without that explanation, the response to Internet hunting may be a typical example of adverse Internet exceptionalism.

The third wave: exceptionalism proliferation

The past few years have brought a new regulatory trend. Regulators are still engaged in Internet exceptionalism, but each new advance in Internet technology has prompted exceptionalist regulations particular to that technology.

The emergence of blogs and virtual worlds has spurred a push toward blog-specific and virtual world-specific regulation. In effect, Internet exceptionalism has splintered into multiple exceptionalist efforts. Social networking sites like Facebook and MySpace get special treatment, too: Rather than regulating these sites like other Web sites, regulators have sought social networking site-specific laws, such as requirements to verify users’ ages, combat sexual predators, and suppress content that promotes violence.

Internet exceptionalism is not inherently bad. But typically, exceptionalism cannot be analytically justified. In these cases, regulatory exceptionalism can be harmful, especially to Internet entrepreneurs and their investors. It can distort the marketplace between Web enterprises and their offline competition—occasionally advantaging the Internet, but typically hindering the Internet businesses’ ability to compete.

Before enacting exceptionalist Internet regulation, regulators should articulate the Internet’s unique characteristics and explain why these differences support exceptionalism. Unfortunately, emotional overreactions to perceived Internet threats or harms typically trump such a rational regulatory process. Knowing this tendency, perhaps we can better resist that temptation.